M. Ajay Kumar, Mujib Kumar Sadasivuni

Heard Mr. M. Ajay Kumar, learned counsel for the petitioner and Mr. Mujib Kumar Sadasivuni, learned Special Government Pleader representing learned Additional Advocate General appearing on behalf of the respondents.

This writ petition is filed to issue a writ of habeas corpus declaring the detention order dated 18.08.2023 passed by respondent No.3 detaining the detenu viz., Mr. Valaboju Kedareeswar and the consequential orders, if any, as illegal and for a consequential direction to respondent No.4 to release the deten forthwith.

Respondent No.3 passed the detention order dated 18.08.2023 against the detenu under the provisions of Section - 3 (2) of the Telangana Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertilizer Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1 of 1986 (Amendment Act No.13 of 2018) (for short Act No.1 of 1986 ), terming him as Land Grabber as defined under Section - 2 (j) of the Act No.1 of 1986.

The impugned detention order was passed by respondent No.3 - detaining authority relying on the following three (03) crimes:

Crime No.

Offences

Allegations levelled

Remarks

65/23 of KUC Police Station, Warangal

(Detenu is arraigned as A-1)

Sections-420, 468, 471 &

386 r/w 34 IPC.

Habitually indulging in unlawful activities as a leader/member of a criminal gang and indulging in the unlawful activities, such as trespassing into the lands/properties of the innocent title holders with an intention to grab their properties.

Detenu was granted bail.

(IO has completed the investigation and laid charge sheet. The same was taken on file as

C.C. No.1288 of 2023)

318/23 of KUC PS

(Detenu is arraigned as A-2)

Sections-420, 468, 471,

386 & 506

r/w 34 IPC.

-do-

Detenu was granted bail.

(Charge sheet was laid and C.C. number is awaited)

333/23 of KUC PS

(Detenu is arraigned as A-1)

Sections-386 & 506 IPC

-do-

Detenu was granted bail.

(Charge sheet was laid and C.C. number is awaited)

Mr. M. Ajay Kumar, learned counsel for the petitioner, would submit that the impugned detention order was issued without application of mind. The detaining authority did not consider the entire material properly as the offences alleged to have committed by the detenu are property offences against individuals and pertain to law and order problem and it do not affect any public order . Criminal law was already set on motion by the affected individuals/victims. Therefore, there is no subjective satisfaction by the detaining authority while issuing the impugned detention order. Without considering the said aspects, the detaining authority passed the impugned detention order and, therefore, the same is liable to be set aside.

On the other hand, learned Special Government Pleader representing learned Additional Advocate General would submit that the detenu engaged as a leader/member of the gang and indulging in unlawful activities, such as cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document for electronic record and extortion by putting person in fear of death in an organized manner, thereby creating large scale fear, panic and a feeling of insecurity among the lawful land owners and general public and, thus, the detenu has been acting in a manner prejudicial to maintenance of public order apart from disturbing the peace, tranquility, social harmony in the society. Due to the said acts of the detenu, the owners of the plots/lands, general public are not in a position to go to their lands/plots. They are panic. Therefore, he is termed as a Land Grabber as defined in Clause (j) of Section 2 of the Act No.1 of 1986. The detaining authority, considering the entire material available on record and after arriving at the subjective satisfaction only, passed the detention order in order to prevent the detenu from committing similar offences. There is no error in it.

Perusal of detention order, dated 18.08.2023 and the grounds of detention passed by respondent No.3 and the record would reveal that the detaining authority passed the impugned detention order relying upon the aforesaid three (03) crimes.

i) Crime No.65 of 2023 was registered on the complaint lodged by one Mr. Urugonda Madhukar, who had purchased 750 square yards of plot bearing No.19 in Survey No.25, situated at Waddepally, Hanmakonda from Uyyala Rajeeru and Sabbani Srinivas under a registered document No.2924 of 2008. He has been in possession of the same. He also constructed a compound wall around the plot, two tin shed rooms by obtaining permission from GWMC, Warangal. He has obtained door No.31-3-1603/1 and the same was got registered in his daughter s name, Sindhu Nikhila. The detenu and his associates, 20 days back from the date of his lodging complaint, one Mr. Gangarapu Nagaraju, an associate of the detenu made a phone call to the complainant and threatened him not to enter into the said plot as they are having all the documents with them and further suggested the complainant that if he wants to settle the issue, he may contact the detenu and his other associates. On enquiry, the complainant came to know that one Shivarasi Prasad Raju has executed GPA in favour of the detenu and his associates by creating fake documents and the said fake document was mortgaged with Pirami Capital & Housing Finance and obtained loan of Rs.38,00,000/-. Thus, the allegations levelled against the detenu are that he along with his associates created false document, obtained GPA, mortgaged the property and threatened the complainants over phone.

ii) Crime No.318 of 2023 was registered on the complaint lodged by one Mr. Raparthy Suresh. The complainant along with one Mr. Komandla Sunil Reddy had purchased 300 square yards plot bearing No.34 in Sy.No.12 at the outskirts of Waddepally in the limits of Komatipally Gram Panchayat, from Raparthy Sahaja, and got it registered in the year 2019. Similarly, Komandla Sunil Reddy had also purchased his adjacent plot bearing No.35, admeasuring 226 square yards from his in-laws and got the land registered by way of gift. While the aforesaid purchasers constructing drainage pipeline in their plots, the detenu and his associate, Mr. Md. Sajid Pasha, went to the plots, stated that they have purchased the said plots. Again on 26.05.2023 at about 1700 hours, when the said plot owners were performing works at their plots, the detenu and his associate went there and asked them to show their land documents on which they have shown original documents. Subsequently, the detenu and his associate threatened them to hand over the original documents, otherwise they would kill them by showing the knives. Due to fear, they have handed over their original documents to the detenu and his associate On enquiry, the plot owners came to know that the detenu and his associate colluded with each other and by using the name of an unknown person Karthik Reddy, created a fake GPA in favour of the detenu and by using such fake document, both of them obtained bank loan and also got the land registered in the name of Sajid Pasha. Thus, the allegations levelled against the detenu and his associates are that they have created fake GPA, mortgaged the subject property and threatening the complainants.

iii) Crime No.333 of 2023 was registered on the complaint lodged by one Mr. Appala Venkata Ramana, who had purchased plot bearing No.88 in Sy.No.11, situated at Waddepally, Hanumakonda from Pallepati Laxmi and got the same registered in the name of his wife Mrs. Anitha Devi. He also constructed a compound wall around the plot and he has been in possession of the same. When the complainant and owner of neighbouring plot owner were at their respective plots, the detenu came and proclaimed that he had purchased their both plots including plot Nos.15, 16, 19 and 87 from one Pingili Karthik Reddy and that all the plots belongs to him. When the complainant and owner of neighbouring plot informed the detenu that they are the real owners of their respective plots, the detenu took knife from his pocket, kept it on the neck of the complainant and threatened them to settle the issue by giving money, otherwise, he would kill both of them. The very same allegations were levelled against the detenu.

It is apt to note that on receipt of the complaints, crimes were registered against the detenu and his associates. On completion of investigation, the Investigating Officers have already laid charge sheets against the detenu and his associates. The Calendar Cases are pending. Thus, the offences said to have committed by the detenu are in relation to property offences, such as cheating, forgery, extortion and criminal intimidation etc., and that too between private individuals. According to learned counsel for the petitioner, the Investigating Officer in Crime Nos.318 and 333 of 2023 did not examine one Mr. Pingili Karthi Reddy, from whom the detenu alleged to have purchased Plot Nos.15, 16, 19, 86, 87 and 88, which includes the plots of the complainant and his neighbour. The said aspects were not considered by the detaining authority while passing the impugned detention order. Thus, the acts committed by the detenu did not disturb public order as contended by learned counsel for the petitioner. At the most, they are law and order issues.

In Arun Ghosh v. State of West Bengal (1970) 1 SCC 98, the Apex Court held as under:

“3. The submission of the counsel is that "these are stray acts directed against individuals and are not subversive of public order and therefore the detention on the ostensible ground of preventing him from acting in a manner prejudicial to public order was not justified. In support of this submission reference is made to three cases of this Court: Dr. Ram Manohar Lohia v. State of Bihar [ (1966) 1 SCR 709; Pushkar Mukherjee and Others v. State of West Bengal [W.P. No.179 of 1968, decided on November 7, 1968: 1969 (1) SCC 10] and Shyamal Chakraborty v. The Commissioner of Police, Calcutta and Another [W.P. No.102 of 1969, decided on August 4, 1969: 1969 (2) SCC 426]. In Dr. Ram Manohar Lohia s case this Court pointed out the difference between maintenance of law and order and its disturbance and the maintenance of public order and its disturbance. Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished, from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large Sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its affect upon the public tranquility there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognised as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petition No. 179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large. He drew an analogy between public and private crimes. The analogy is useful but not to be pushed too far. A large number of acts directed against persons or individuals may total up into a breach of public order. In Dr. Ram Manohar Lohia s case examples were given by Sarkar, and Hidayatullah, JJ. They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. The question to ask is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another.”

Thus, there is no disturbance to the public order due to the above stated alleged acts said to have been committed by the detenu. The investigating Officers in the said crimes did not file petitions seeking cancellation of bails on the ground that the detenu committed similar offences or violation of conditions imposed by the learned Magistrates while granting bails.

The object of the Act No.1 of 1986 is to provide for preventive detention of Bootleggers, Dacoits etc. including Land Grabbers, who engaged or is making preparations for engaging any of the activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order . It is apt to refer to Section - 2 (j) of the Act No.1 of 1986 and the same is as under:

“(j) “land-grabber” means a person, who illegally takes possession of any land (whether belonging to Government, local authority or any other person) or enters into or creates illegal tenancies or lease and licence, agreements or any other agreement in respect of such lands; or who constructs unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and licence basis or for construction or use and occupation of un-authorised structures or he knowingly gives financial aid to any person for taking illegal possession of such lands, or for construction of unauthorised structures thereon or who collects or attempts to collect from any occupier of such lands, rent, compensation, or other charges by criminal intimidation or who evicts or attempts to evict any such occupier by force without resorting to the lawful procedure; or who abets in any manner the doing of any of the above mentioned things.”

The aforesaid facts would reveal that criminal law was already on set on motion by registration the aforesaid crimes. The acts alleged to have committed by the detenu are between private individuals and the same would come under the purview of law and order and would not create any panic in the minds of general public and thereby causing prejudicial to the public order. The detaining authority did not consider the entire material on record and did not come to a subjective satisfaction that the acts committed by the detenu disturbed the public order. Thus, the detaining authority failed to draw a distinction between law and order and public order .

It is also apt to note that the preventive detention order has to be passed in rarest of rare cases, that too, to prevent the detenu from committing similar offence which will cause disturbance to the public order. There is no consideration of the said aspects by the detaining authority.

In the light of the aforesaid discussion, we are of the considered view that the impugned detention order and the consequential confirmation order are illegal and the same are liable to be set aside and accordingly the same are set aside.

Therefore, this writ petition is allowed and the detention order dated 18.08.2023 passed by respondent No.3 vide Proceedings C.No.548/WRC/CSB-XI/2023 and the consequential confirmation order passed by respondent No.1 vide G.O.Rt.No.1356 of General Administration (Spl. {Law & Order}) Department, dated 29.09.2023 are hereby set aside. The respondents are directed to set the detenu viz., Mr. Valaboju Kedareeswar S/o Valaboju Rambramhma Achari, free, if he is no longer required in any other criminal case. In the circumstances of the case, there shall be no order as to costs.

As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.